1. This is an appeal from a judgment and decree of the Subordinate Judge of Patna, dated the 12th May, 1907, dismissing the plaintiff's claim for pre-emption on the ground that the evidence was not sufficient to show that the formalities required in the talab-i-istishad had been observed and specially that there was no evidence that the plaintiff called the witnesses to attest that he had previously performed the talab-i-mowasibat. The Judge further found as a fact that the entire evidence adduced by the plaintiff to prove the performance of the formalities has been concocted for the purposes of this suit. There are so many discrepancies as to the particular words used at the time of the alleged performance of the formalities and the surrounding circumstances that he was not prepared to believe the evidence so far as it went.
2. It is a great pity, and we trust that in future this will be corrected, that the exact words used by the witnesses were not taken down in the Court of first instance. The question depending entirely on the form of words that is to be used, should certainly be adjudicated upon on the actual words given in the vernacular by the witnesses, but it would obviously be useless for us at this distance of time to order a remand for the purpose of taking down those words. It is inconceivable that the Munsif, if he is still in the same place, could possibly remember what the words were and the door would be open to the parties to correct them now knowing the deficiencies in their previous evidence. But even as it stands, we cannot go behind the finding of fact of the District Judge inasmuch as on looking through the evidence we find that the account given of the form used does differ in the mouth of each witness.
3. As regards the law, we think that the plaintiff is concluded by the Full Bench case of Rujub Ali Chopedar v. Chundi Churn Bhadra 17 C. 543 (F.B.). The case of Nundo Pershad Thahur v. Gopal Thakur 10 C. 1008, which was overruled by the Full Bench, was a stronger case in favour of the plaintiff than the case we have now before us; and on referring to that it is perfectly clear that the Full Bench laid down and intended to lay down that the pre-emptor, in every case when he makes the demand of talab-i-istishad, is required to make a declaration before witnesses that he asserted his right when first he heard of the sale.
4. This dictum has not been in any way explained away or modified by the cases that have been cited before us, namely, Jog Deb Singh v. Mohammed Afzal 32 C. 982 and Jadu Lal Sahu v. Janki Koer 35 C. 575. In a very recent case, (Second Appeal No. 978 of 1908) Jadu Singh v. Butan Singh 2 Ind. Cas. 207, a Bench of this Court has again drawn attention to the absolute necessity of this formality being fully observed. It is, therefore, impossible to hold either on the evidence or on the law that the plaintiff has exercised his rights of pre-emption.
5. The appeal is, therefore, dismissed with costs.